COMMITTEE OF EXPERTS OF THE FOLLOW-UP MECHANISM FOR THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION

The 1991 Constitution generously enshrined provisions aimed at pursuing the efficient operation of Colombia as a democratic State, organized as a unitary, decentralized, democratic, participatory, and pluralistic Republic, with autonomous territorial entities, founded on respect for human dignity, work, the solidarity of its people, and the prevailing common good.

The essential purposes of the State are to serve the community, promote overall prosperity, and ensure the effective exercise of the principles, rights, and duties enshrined in the Constitution; and to facilitate participation by all people in decisions that affect them and in the economic, political, administrative, and cultural life of the Nation. Government authorities are appointed to protect the life, honor, property, beliefs and other rights and freedoms of residents of Colombia and to ensure fulfillment of the social duties of the State and of individuals.

The Constitution increases the responsibility of civil servants who, in addition to being accountable for violations of the Constitution and of laws, are also liable for omissions or abuses in the exercise of their functions. The law can establish several types of accountability, such as political (Articles 133, 135, 174, and 175), property protection (Article 90), criminal and disciplinary (Articles 92 and 268) and fiscal (Article 268).

Chapter I, Title II of the Constitution sets forth fundamental rights, which receive special protection from the State. It also enshrines social, economic, and cultural rights, collective rights, and environmental rights, which each have their respective protection mechanisms, including injunctions to protect constitutional rights, compliance proceedings, action for restitution judicial proceedings, and actions to protect human rights. The Constitution authorizes any natural or artificial person to call upon the competent authority to enforce criminal and disciplinary sanctions that may result from the conduct of public authorities.

As a tool to fight administrative corruption, Article 34 of the Constitution provides for termination of ownership of property acquired through illicit enrichment to the detriment of the Public Treasury.

Moreover, Articles 121 to 131 set forth provisions regulating civil service; they comprehensively indicate who qualifies as a civil servant and establish incapacities, incompatibilities, and prohibitions, as well as their form of entailment. Article 126 establishes a general framework that seeks to make the exercise of civil service transparent and lawful, while always striving to serve the community well, guarding against corruption. To that end, it prohibits persons from appointing relatives, establishes disqualifications and incompatibilities for entering into contracts with public entities, and bars the simultaneous holding of different government jobs.

On the same moral basis, Article 122 of the Constitution requires civil servants to report their property and income, to prevent and impede illicit enrichment. That same precept also stipulates that any person who has been convicted of crimes against State property is not eligible to perform civil service.

Articles 209 to 211 of the Constitution set forth provisions relating to administrative duties, which are to serve the common good and are implemented based on the interests of equality, morality, efficacy, economy, expediency, impartiality, and disclosure, by decentralizing, delegating, and deconcentrating functions; oversight bodies must take account of those interests. Article 125, in turn, deals with administrative career service.

Colombia’s political system has three branches of government, i.e. executive, legislative, and judicial. The former is run by the president of the Republic, who is the head of state, head of government, and top administrative authority. The national government is composed of the president of the Republic, the ministers, and the directors of the administrative departments.

Other components of the executive branch include governors’ and mayors’ offices, superintendencies, public institutions, and government industrial or commercial enterprises.

The legislative branch is composed of the Congress of the Republic, made up of the Senate and the House of Representatives. Congress is responsible for amending the Constitution, enacting laws, and exercising political checks on the government and administration.

The president can ask Congress to give him special powers to issue standards that have the force of law, when necessary or when advisable for the public good.

The justice administration organs are the Constitutional Court, the Supreme Court of Justice, the Council of State, the Superior Judicature Council, the Office of the Public Prosecutor of the Nation, the courts, and judges. Justice is also administered by the military criminal justice system and, in some cases, by the Congress. Individuals can temporarily be invested with the authority to administer justice as conciliators or arbitrators, under the terms set forth by law.

In addition to the organs in the branches of government, other autonomous and independent agencies fulfill other State functions. The various State organs have separate functions, but collaborate harmoniously to achieve their purposes.

The Office of the Attorney General (Ministerio Público) and Office of the Comptroller General of the Republic are oversight bodies. Operating in the former are the Prosecutor General of the Nation, the Public Defender, local attorneys and agents of the Office, municipal representatives, and any other officials set forth by law. The Office of the Attorney General is responsible for protecting and promoting human rights, protecting the public interest, and overseeing the official conduct of civil servants. The Office of the Comptroller General is responsible for monitoring fiscal management and controlling the output of the administration.

The electoral system is an independent branch composed of the National Electoral Council, the National Civil Registry Office, and any other agencies stipulated by law. It is responsible for organizing, managing, and overseeing elections and for aspects relating to the identity of persons.

For international treaties to take effect, they must be approved by the Congress. The Constitutional Court, in turn, is responsible for ultimately deciding on their implementability and that of the laws Congress enacts. If the Court finds them constitutional, then the exchange of letters, ratification, or accession can proceed, as appropriate. When the Constitutional Court finds one or more provisions of a multilateral treaty to be unenforceable, only the president of the Republic can state consent by formulating the corresponding reservation.

MEASURES AND MECHANISMS REGARDING STANDARDS OF CONDUCT FOR THE CORRECT, HONORABLE AND PROPER FULFILLMENT OF PUBLIC FUNCTIONS (ARTICLE III, 1 AND 2 OF THE CONVENTION)

a. Are there standards of conduct in your country for the correct, honorable and proper fulfillment of public functions? If so, briefly describe them and list and attach a copy of the related provisions and documents.

Yes, there are standards of conduct for proper, honest and proper fulfillment of public functions. They are contained in various provisions that define duties and prohibitions, and describe prohibited conduct. The most important of these provisions are dealt with below.

“Private individuals are only answerable for violations of the Constitution or of statutory law. Public officials, in addition to being answerable for such offenses, are answerable for failing to act or for abusing their authority in the course of their governmental duties.”

“Public administration exists to serve the common good and is based on the principles of equality, morality, efficacy, economy, timeliness, impartiality and public dissemination achieved through decentralization, delegation and deconcentration of functions.

Article 22. “Guarantee of performance in government service. Subject to disciplinary action for non-compliance with these provisions, public officials, in order to safeguard the public morality, transparency, objectivity, legality, honesty, loyalty, equality, impartiality, timeliness, public dissemination, economy, neutrality, efficacy and efficiency that they are required to observe in carrying out their jobs, responsibilities or functions shall, in accordance with the Constitution and statutory law, perform their duties, observe relevant prohibitions, and act in accordance with the regime governing disqualification, ineligibility, impediments and conflicts of interest established in the Constitution and in the law.”

Articles 23, 34 and 35 establish disciplinary offenses and define the duties and prohibitions applying to public officials.

Offenses against the government: Conduct considered to violate the integrity of public assets, public funds or activities of the State, with the active subject – i.e., the person carrying out the prohibited conduct – being generally a public official.

This is an offense committed by a public official who, as a part or as a result of his job, administers, has custody of or collects State assets, and who appropriates them, uses them improperly, uses them in a non-standard official manner or allows them to be mislaid, lost or damaged. This offense may also apply in cases where the public official is responsible for the custody of private parties. The various types of embezzlement are as follows:

This offense is one committed by a public official who, exceeding his authority or abusing his position, compels or induces someone to give or promise money or some other item of value to himself or a third party. It is defined in Article 404 of the Penal Code.

This offense is one committed by a public official who accepts or expects to receive money or some other item of value for delaying or failing to carry out an act associated with his position, or to carry out an act contrary to his official duties, or who accepts money or some other item of value from a person who is involved in a proceeding which said public official is handling.

Article 405. Embezzlement for individual gain.

Article 408. Violation of the legal or constitutional regime of disqualification and ineligibility.

This offense occurs when, for his own benefit or for the benefit of a third party, a public official improperly uses influence deriving from his position or function in order to produce a benefit in a matter that he is handling or may be expected to handle. This offense is defined in Article 411 of the Penal Code.

This concerns a public official who profits unjustifiably or allows someone else to do so as a result of his job or within two years of leaving it. Described in Article 412 of the Penal Code.

This concerns a public official who, in exercising his duties, carries out an act, decision or concept demonstrably contrary to the law, or who fails to, delays, refuses to or declines to carry out an act associated with his duties. The standards defining this offense are:

Articles 416 to 424. Included here are arbitrary and unfair acts, failure to report an offense, divulging secret information, using information that is secret or restricted, making improper use of privileged information, providing advice or other illegal actions, intervening in political matters, illegally use of the police and failure to provide assistance.

· Improper use of information or influence deriving from the exercise of public functions.

Article 432. Improper use of influence deriving from the exercise of public functions.

Article 434. Association for the commission of an offense against public administration.

“Fiscal management. For the purpose of this law, fiscal management shall mean the totality of economic, juridical and technological activities carried out by public officials and private persons who handle or manage public resources or funds, involving the appropriate and proper acquisition, planning, preservation, administration, custody, exploitation, sale, consumption, adjudication, expenditure, investment or disposition of public assets, as well as the collection, management and investment of their proceeds in order to promote the essential goals of the State, subject to the principles of legality, efficiency, economy, efficacy, equity, impartiality, morality, transparency, public dissemination as well as the principle which requires that environmental costs be assigned an economic value.

Article 36. “In any proceeding for offenses against public administration, it shall be mandatory that criminal proceedings be brought by the public law juridical person that has been harmed. “

Article 23. “Regarding the principles involved in the making of contracts by government entities. Those persons involved in making government contracts shall act in accordance with the principles of transparency, economy and accountability, and consistent with the principles set forth governing public administration. In addition, rules regarding the interpretation of contracts, general principles of law and the particulars of administrative law shall be applied in the standards governing the conduct of public officials.” Articles 24, 25, 26 deal with the principles of transparency, economy and responsibility.

Article 3. “Public administration shall conform to constitutional principles, in particular those relating to good faith, equality, morality, timeliness, economy, impartiality, efficacy, efficiency, participation, public dissemination, responsibility and transparency. These principles shall also be applied to the provision of public services to the extent to which they are compatible with the nature of and regulations covering said services.”

In addition to the provisions of the Disciplinary Statute, judges shall be subject to the present statute, which defines duties, prohibitions, impediments, disqualification and ineligibility, and conflicts of interest that apply to officials of the judicial branch.

Article 263. “Commitments and accountability. The members of the legislature represent the people and shall act in accordance with principles of justice and the common good. They are politically accountable to the society and the voters for meeting the obligations that their offices entail.”

The previous government’s policy included distribution to governmental agencies of an ethics manual designed to reinforce ethical values. Said values are dealt with in this directive, which provides guidelines for governmental agencies to carry out training in ethics for public officials, so that self-regulation may become the norm. The ethics manual has been distributed to all agencies of the national government, and the Presidential Program to Combat Corruption has been available to advise them, while it has also monitored enforcement. The Presidential Program has also been available to sub-national governmental agencies for advisory support.[1]

To date, 98 government entities have carried out values training and created their own code of ethics, as indicated in the manual. Twenty-six entities are currently engaged in this process. In the defense sector, the Presidential Program provided aid to 28 agencies, following which a process was undertaken in which a uniform code was created for all civil and military personnel in those agencies. The process includes standards that have not been imposed, an ongoing, dynamic process in which ethical values for the public sector are created by defining the principles and values for which public officials are accountable.

“Program to Revitalize Public Administration: Toward a Communal State”

The current government, which recently took office, issued this directive last August 20 because it considered that the legitimacy of the Colombian government had suffered from the effects of corruption, clientism and politicking. The directive sets forth the foundation and guiding principles that public officials are to follow as part of the modernization of public administration—a process which this government is going to carry out through short-, medium- and long-term activities designed to create a new public-sector culture, promote transparency and integrity in management as well as austerity, encourage participation by civil society and accountability in public administration, promote results-oriented management in the public sector, etc.

As part of its strategy of participating in government programs and activities designed to encourage transparency and morality in public administration, this Department has produced the following items, the contents of which may be seen at www.dafp.gov.co

- The book “Riesgos de Corrupción en la Administración Pública” [Risks of Corruption in Public Administration]

- “Cartilla Guía para la elaboración de los Mapas de Riesgos de corrupción” [Pamphlet with guidelines for the creation of corruption risk maps], with support from the World Bank

- Preparation of a CD with a Proposed Methodology for Identifying Risks of corruption

In accordance with Presidential Directive 09 of 1999 (“Strategies for the Anti-Corruption Program”), the Department has carried out the following activities in support of the development of morals and ethical principles and values training for public officials from 1999 to the present:

b. Does your country have mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents.

Reactive mechanisms have been established to enforce compliance with said standards. These include sanctions for non-compliance; disciplinary, criminal and prosecutorial procedures as set forth in the Uniform Disciplinary Code, the Penal Code, and Law 610 of 2000, which deals with fiscal responsibility, as well as standards covering action for restitution, bringing criminal proceedings and action for restitution. In addition, there are many mechanisms that act as incentives for public officials to perform their duties properly, including the civil service system, orientation and re-orientation programs for public officials, the voluntary ethical conduct codes dealt with in Presidential Directive 09 of 1999 (referred to in the response to the previous question), as well as tools that are available to citizens to ensure that public officials properly perform their functions (see response in chapter IV of this questionnaire).

The code applies to all public officials, including those who are retired from service.

Articles 44 and 45 set forth categories of sanctions and define the sanctions.

Articles 34 and 35. Regarding sentencing. Sentences imposed according to this code take precedence over, replace, and obviate other applicable laws when the latter do not operate as primary.

“Definition. Fiscal responsibility includes all administrative activities carried out by Offices of the Controller General in order to identify and establish the responsibility of public officials and private individuals who, in exercising or in connection with fiscal management, by some act or by an act of omission, cause, in a willful or negligent manner, harm to the assets of the State.”

In which the State takes ownership without consideration or compensation of any sort to the owner. This applies to public officials as well as to private individuals.

This law provides for regulation of matters set forth in Article 90 of the Constitution.

Article 2.- “Action for restitution. This is a civil action for monetary payment taken against a current or former public official who, as a result of fraudulent or grossly negligent conduct has provided indemnity on behalf of the State, arising from a sentence, conciliation or other form of terminating a conflict. Such action is taken against an individual who, entrusted with public duties, has fraudulently or in a seriously culpable manner, has caused there to be monetary reparation.” [3]

Article 36.- “In any proceeding for offenses against public administration, it shall be mandatory that criminal proceedings be brought by the public law juridical person that has been harmed.”

Article 296. Basis. Removal from office occurs as a result of violation of the regime of disqualification or ineligibility, conflict of interest provisions, improper use of public funds, duly proven trafficking in influence, failure, during one legislative session, to attend six (6) plenary sessions in which votes are taken on legislative bills or censure motions, or failure to take office within eight (8) days following the opening of the legislative session, or following the date on which legislators were to take office.

“Article 1.- The civil service system is a technical system for personnel management, the object of which is to ensure efficiency in public administration and provide equal opportunity for access to public employment, provide training, ensure job stability and ensure possibilities for promotion.”

“Article 2.- Governing principles: In addition to the principles of morality, efficacy, economy, timeliness, impartiality and public dissemination, as set forth in Article 209 of the Constitution, civil service shall be based on the principles of equality and merit.

As mandated in the Anti-corruption Statute, evaluation forms for all career public officials in government agencies are provided as part of the process of establishing objectives, monitoring said public officials, and (a third document) providing for overall evaluation. There are also mechanisms to reward the best public officials.

Articles 24, 25 and 26 establish incentives for public management , creating the Success Bank, the National Award for Excellence in Management, which is given for excellence in institutional performance, and rewards for public officials who distinguish themselves by their efficiency, creativity and merit in carrying out their duties, without prejudice to being eligible for incentives provided for in other provisions.

Article 64.- “All government agencies shall have an orientation program for personnel entering the agency, as well as a biennial reorientation program for existing officials. These programs are to cover, among other things, standards governing limits to authority, disqualification, conflict of interest, standards affecting administrative morality, and issues specifically addressed in the present law.”

This statute creates the Uniform Personnel Information System (SUIP), which makes information available for the control of corruption in personnel management in government agencies.

Finally, it should be noted that one important mechanism in enforcing standards consists of the criminal records information held by the Administrative Security Department and the records managed by the Registry, Supervision and Correspondence Division of the Office of the Attorney General of the Nation.

c. Briefly indicate the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available.

- SUPREME JUDICIAL COUNCIL: In 2001, 2,703 cases were presented to the Supreme Judicial Council, of which 2,281 were initiated by indictments from the Public Prosecutor. A total of 1,036 judges were convicted, and 275 were acquitted.

- COUNCIL OF STATE: To date, 312 requests for removal from office have been received, of which 38 have been granted.

a. Does your country have standards of conduct regarding the prevention of conflicts of interest in the performance of public functions? If so, briefly describe them, indicating aspects such as to whom they apply and the concept on which they are based, and list and attach a copy of the related provisions and documents.

To prevent private interests from interfering with public duties, the Constitution and the law set forth a series of requirements and restrictions for those who have performed or are currently performing duties in public positions. These requirements and restrictions are commonly referred to as disqualifications and conflicts of interest, and are set forth in various provisions, some of which apply specifically to particular jobs. These standards are based on the importance of promoting honorable conduct in politics and government and altering customs to ensure that they are ethical and moral. The general standards appear in the following documents:

· THE CONSTITUTION

Articles 126, 127, 128 and 129 cover, in a general form, issues of disqualification and conflict of interest relevant to all public officials.

Our disciplinary legislation provides for disciplinary sanctions in the case of public officials, or private individuals temporarily performing government duties, who violate prohibitions, impediments, ineligibility and conflict of interest provisions.

Articles 33 to 41. These articles incorporate in the code, by reference to the Constitution and statutory law, the disqualifications, impediments, ineligibility and conflict of interest provisions covered therein.

· GOVERNMENT CONTRACTING STATUTE – Law 80 of 1993

Article 8 states that public officials, as well as persons related in specified ways to them, may neither participate in bidding or compete for government contracts nor be party to such contracts.

Articles 279, 280, 281,282 and 283 cover disqualification and conflict of interest.

“Article 286.- Application. When a member of Congress, the member’s spouse or other permanent partner, a blood relation up to the fourth degree of consanguinity or relation by marriage of the second degree of affinity or less or civil relation of the first degree, or a legal or de facto partner or partners of the member has a direct interest in the decision because it affects said party or parties in some manner, then the member shall disqualify himself or herself from participating in debate and voting on the matter in question.”

b. Does your country have mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents.

Violation of standards of disqualification and ineligibility, and conflicts of interest is punishable according to the disciplinary and/or penal provisions applicable to each such case, as indicated in section 1b of the Anti-corruption Statute, which includes a tool—a curriculum vitae—to aid in detecting possible disqualification and ineligibility. Criminal and disciplinary records, mentioned above, are also an important mechanism for the purpose. In addition, as mentioned above and as set forth in Article 183 of the Constitution and Article 296 of Law 5 of 1992, a member of Congress may be removed from office. In all cases, complaints by the special oversight bodies and the community in general are important, as well as actions taken by oversight bodies. The communications media are very important in this respect, and Article 76 of the Anti-corruption Statute requires that their role be protected and supported by public officials.

ANTI-CORRUPTION STATUTE – Law 190 of 1995

“Any person who seeks a government position or job, or who seeks a contract to provide services to the government, must submit to the personnel unit of the agency involved (or to the office which performs that function for the agency in question) complete background information in the uniform format designated for the purpose."

Among other things, work experience must be indicated, as well as the absence of any fact or circumstance that may imply disqualification or ineligibility in relation to the position, job or contract sought, in the sense of those terms set forth in the Constitution and relevant laws.

Appointment to and holding of office without fulfilling the above requirements.

c. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

- OFFICE OF THE ATTORNEY GENERAL OF THE NATION (See general statistics, referred to above).

- PUBLIC PROSECUTOR OF THE NATION (See general statistics, referred to above ).

- COUNCIL OF STATE– REMOVAL FROM OFFICE: As indicated above, to date there have been 312 requests for removal, of which 38 have been granted, and 28 of which were due to conflicts of interest and ineligibility.

ADMINISTRATIVE DEPARTMENT OF PUBLIC ADMINISTRATION – UNIFORM CURRICULUM VITAE:

The Department is responsible for administering the Uniform Personnel Information System, in which background information is recorded, including basic information from the curriculum vitae, work experience and academic training of the public officials working in 201 of the 216 national-level agencies that currently report to the system. This includes, in the current initial stage, executive branch entities and oversight bodies, along with the National Registry of Vital Records. This information aids the national government in designing human resources policy. The system makes it possible to update background material and verify information in documents that are submitted, so that data is reliable and accurate. It also makes it possible to obtain reports based on active C.V.s, information on hiring and date of leaving the post, etc. When investigation is called for, the oversight and supervision bodies and the courts request information from these files. During 2001 and 2002 to date, 152 requests for information have been answered. The second stage of development of the system calls for covering the judicial branch and sub-national government entities by the end of 2003.

d. If no such standards and mechanisms exist, briefly indicate how your country has considered the applicability of measures within your own institutional systems to create, maintain and strengthen the standards of conduct intended to prevent conflicts of interest, and mechanisms to enforce compliance, in accordance with Article III (1) and (2) of the Convention.

3. Conservation and proper use of resources entrusted to public officials in the performance of their functions.

a. Does your country have standards of conduct designed to ensure the preservation and proper use of resources assigned to public officials in carrying out their duties? If so, describe them briefly, indicating such aspects as to whom they apply and what resources are covered, referencing and attaching a copy of the provisions and documents in which they are set forth.

b. Does your country have mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the related provisions and documents.

c. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

OFFICE OF THE CONTROLLER GENERAL OF THE REPUBLIC. (See attached general statistics on the Controller General of the Republic.)

d. If no such standards and mechanisms exist, briefly indicate how your country has considered the applicability of measures within your own institutional systems to create, maintain and strengthen the standards of conduct that establish measures and systems governing the requirement that public officials report to appropriate authorities acts of corruption in public office of which they are aware, and mechanisms to enforce compliance, in accordance with Article III (1) and (2) of the Convention.

4. Measures and systems requiring public officials to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware.

a. Are there standards of conduct in your country that establish measures and systems governing the requirement that public officials report to appropriate authorities acts of corruption in public office of which they are aware? If yes, briefly describe them, indicating aspects such as to whom they apply and if there are any exceptions, and list and attach a copy of the related provisions and documents.

Yes, such standards do exist. The exception to the general rule on reporting appears in the Constitution, Article 33 of which states that no one may be required to make statements against self, spouse or permanent partner, or blood relatives up to the fourth degree of consanguinity, second degree by affinity, or first civil degree.

“Article 34. Duties. These are duties of all public officials.

24. To report crimes, violations and disciplinary offenses of which the employee has knowledge, except for those exceptions provided for in the law.”

4. Failing to perform, delaying or creating obstacles to disciplinary procedures undertaken in response to gross misconduct committed by public officials, or failing to perform or delaying the reporting of gross misconduct or willful wrongdoing, involuntary or unintentional, capable of being investigated on an official basis, of which the employee has knowledge as a result of his government service.”

“Article 70. Mandatory nature of disciplinary action. Any public official who has knowledge of a fact that may constitute a disciplinary offense, if it is within his authority, shall immediately undertake appropriate action. If not within the official’s authority to initiate action, he shall report the facts to the relevant authority, providing the available evidence.

If the facts in a disciplinary investigation might constitute offenses capable of being investigated on an official basis, they must be made known to the relevant authorities, along with evidence of the possible criminal conduct.”

“Article 71. Exemption from the requirement to lodge complaints. A public official is not obliged to report against himself or his spouse, permanent partner, blood relations up to the fourth degree of consanguinity, relations by marriage to the second degree of affinity, or first civil degree, nor is he required to report facts for which knowledge was acquired as a result of or in the course of activities to which professional confidentiality legally applies.”

PENAL CODE - Law 599 of 2000

“Article 414. Subverting the course of justice by an act of omission. A public official who fails to act, delays action, refuses or neglects to perform an act that is part of his duties, will be subject to a sentence of 2 to 5 years in prison, a fine of 10 to 50 current monthly minimum wages, and exclusion from the exercise of public rights or functions for 5 years.”

“Article 417. Subverting the course of justice through failure to report. A public official who, having knowledge of punishable conduct the investigation of which should be carried out on an official basis, fails to report the facts, shall be fined and lose his job or public office. The sentence may be from 2 to 4 years of prison if the punishable conduct which he failed to report is one of those types of conduct described as an offense of failure of an individual to report.”

“Article 27. All persons must report to the authorities punishable conduct of which they have knowledge and that is required to be investigated on an official basis. A public official who has in any manner learned of punishable conduct required to be investigated on an official basis shall without delay initiate investigation if he has authority to do so. If not, he shall immediately make the facts known to the relevant authority.”

b. Does your country have mechanisms to enforce compliance with the above standards of conduct? If so, briefly describe them and list and attach a copy of the provisions and documents.

As indicated above, failure to report constitutes a gross disciplinary offense.

Article 44. Types of sanctions. A public official is subject to the following sanctions: Removal and general disqualification for gross willful offenses or offenses carried out with gross negligence, as well as suspension from duties and special disqualification for gross willful or grossly negligent offenses.”

PENAL CODE - Law 599 of 2000

c. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

See data in the general statistics of the Office of the Attorney General of the Nation and of the Public Prosecutor of the Nation, mentioned above and attached to the present document.

d. If no such standards and mechanisms exist, briefly indicate how your country has considered the applicability of measures within your own institutional systems to create, maintain and strengthen the standards of conduct that establish measures and systems governing the requirement that public officials report to appropriate authorities acts of corruption in public office of which they are aware, and mechanisms to enforce compliance, in accordance with Article III (1) and (2) of the Convention.

a. Does your country have regulations establishing methods for registering the income, assets and liabilities of those who perform public functions in certain posts as specified by law and, where appropriate, for making such disclosures public? If so, briefly describe them, indicating aspects like to whom they apply and when the declaration must be presented, the content of the declaration, and how the information given is verified, accessed and used. List and attach a copy of the related provisions and documents.

CONSTITUTION

“Article 122, section 3. A public official, before taking up duties, upon leaving a position, or when authorized officials so request, shall state under oath the amount of his assets and income.”

Articles 13, 14 and 15. Statement under oath, identifying all personal assets, is required for taking up a position and carrying out its duties. Information provided must be updated yearly, and upon leaving a post, and must contain a certain minimum of information.

“Article 16. The personnel unit of the agency or entity that acts as such for the agency must compile and classify the information contained in the statements referred to in this law, attaching the corresponding curriculum vitae.

b. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

ADMINISTRATIVE DEPARTMENT OF PUBLIC ADMINISTRATION – INFORMATION SYSTEM FOR SWORN STATEMENTS (SIDEC)

To ensure the proper functioning of the system of statements of assets and income, the Department developed the SIDEC, a system for the computerized handling, oversight and monitoring of the sworn information in question. Divisions of the national executive branch of government, oversight bodies, the Public Prosecutor of the Republic and the National Registry of Vital Records have access to this system, which allows them to carry out their function of compiling and processing the Uniform Format. Personnel heads, or those who function as such in all government offices, may verify submission of these statements at any time, as well as the accuracy of the content and changes therein, through the sampling or random selection system provided. To date, some exercises have been carried out with sub-national entities on their initiative, and the software used at the national level is being adapted for their use. [7]

c. If no such regulations exist, briefly indicate how your country has considered the applicability of measures within your own institutional systems to create, maintain and strengthen the regulations that establish methods for registering the income, assets and liabilities of those who perform public functions in certain posts as specified by law and, where appropriate, for making such disclosures public, in accordance with Article III (4) of the Convention.

a. Does your country have oversight bodies charged with the responsibility of ensuring compliance with the provisions stated in Article III (1), (2) and (4)? If so, list and briefly describe their functions and characteristics, and attach a copy of the related provisions and documents.

Yes, the Constitution, in Article 117, assigns oversight functions to the Office of the Controller General of the Nation and the Office of the Attorney General, through the Office of the Solicitor General of the Nation. There is also criminal oversight by the Public Prosecutor of the Nation, in the form of criminal proceedings when punishable conduct is at issue, as well as oversight exercised by citizens (see Chapter Four).

Article 267, sections 1 to 5. "Fiscal oversight is a public function exercised by the Office of the Controller General of the Republic, which supervises the fiscal management of governmental agencies and of individuals or entities that handle funds or assets belonging to the nation. This oversight is exercised on a selective ex-post basis, in accordance with procedures, systems and principles established in the law. It may, however, in special cases, authorize supervision to be performed by private Colombian firms selected competitively by merit, and hired with approval of the Council of State. Supervision of fiscal management includes financial monitoring, monitoring of management and performance, based on criteria of efficiency, economy, equity and assessment of environmental costs. In exceptional cases provided for by law, the Office of the Controller General may exercise ex post facto oversight with respect to the accounts of any sub-national entity. The Office of the Controller is a technical agency with administrative and budgetary autonomy. It may not exercise administrative functions apart from those inherent to its own organizational role.”

Article 268, sections 1 to 8. Authority of the Controller General of the Republic: The Constitution assigns the Controller authority for fiscal oversight of public administration and individuals or entities who handle funds or assets belonging to the State. This constitutional principle is supported by regulations set forth in Decree 267 of 2000. The Office of the Controller General exercises its functions in a selective ex post manner, including financial, management and performance monitoring. It has an office directly responsible for investigating evidence relating to corruption, namely the Office of Investigation, Fiscal Cases and Coactive Jurisdiction. The Offices of the Controller General and Departmental Management are responsible for investigations in which improper handling of public resources is involved.

If the Office of the Controller General, in carrying out its investigative or auditing duties, finds facts that may constitute violation of criminal law or of disciplinary rules, it is obliged to transmit these issues to the relevant agency. All governmental organizations are required to provide the information requested by the Office of the Controller General in carrying out its functions.

OFFICE OF THE ATTORNEY GENERAL – OFFICE OF THE SOLICITOR GENERAL OF THE NATION

“Article 275. The Solicitor General of the Nation is the head of the Office of the Attorney General.”

“Article 276. “The Solicitor General of the Nation shall be chosen by the Senate for a four-year term, from a list provided by the President of the Republic, the Supreme Court and the Council of State.”

Article 277, sections 5, 6 and 7. Functions of the Solicitor General, in regard to governmental morals and efficiency in the official conduct of persons carrying out public functions, and in actions to protect the rule of law, the public wealth and basic rights and guarantees.

This entity is envisaged as an oversight body that is part of the Office of the Attorney General and whose functions are determined in the Constitution and further developed in Decree 262 of 2000. The functions include ensuring the diligent and efficient exercise of administrative functions and exercising oversight of the official conduct of those performing public functions.

Like the Public Prosecutor, this entity has special units (Office of Public Morals, Office of Government Contracting, and Office of Civil Service), which are responsible for disciplinary investigations of public officials or individuals carrying out government functions where there is conduct related to corruption in public administration. These units are administratively, functionally and budgetarily subordinate to the Office of the Attorney General and have authority to investigate and impose sanctions where disciplinary issues are involved. To this end, they function as a judicial police force, which allows them to collect all evidence, as established in the Codes of Criminal and Civil Procedures.

In addition, sub-national entities include Regional and Provincial Offices of Attorneys General, which are responsible, among other things, for investigating public officials where there is evidence of corruption.

When, in the course of investigation by these entities, it is established that there has been conduct that may constitute criminal or fiscal violations, the investigating entity is required to provide copies for relevant investigations by the Offices of the Public Prosecutor and Controller General. All governmental entities are required to collaborate with investigations carried out by the Office of the Attorney General.

“Article 249. The Office of the Public Prosecutor of the Nation shall be composed of the Public Prosecutor, Deputy Public Prosecutors and other staff established by law.

The Public Prosecutor shall be chosen for a non-renewable four-year term by the Supreme Court, from a list provided by the President of the Republic. The qualifications for the post are the same as those required to be a justice of the Supreme Court.

The Office of the Public Prosecutor is part of the judicial branch, and shall have administrative and budgetary autonomy.

“Article 250, section 1. The Office of the Public Prosecutor, whether on its own initiative or in response to a report or complaint, is responsible for investigating offenses and bringing alleged perpetrators before the appropriate court. However, offenses committed by active members of the police force in the course of their duties therein, are excepted from the jurisdiction of the Office of the Public Prosecutor. For the purpose indicated, the Office of the Public Prosecutor shall...”

Resolution 0227 of February 1998 creates the National Anti-corruption Unit, which reports to the National Office of Public Prosecutors and is responsible primarily for investigating public administration offenses of national importance. In addition, there are special decentralized units specifically designed to investigate corruption. They are housed in the public prosecutors’ offices located in each of the country’s departments.

While the 1991 Constitution created this entity with authority to investigate and bring charges (Article 251), each of the above-mentioned units carries out the task by investigating and bringing charges against alleged perpetrators of public administration offenses in the nation’s courts. (The units’ authority includes detention, search, and interception of telephone calls and mail, among other actions.)

These investigative units may call on support from elements of the judicial police (CTI, DAS or DIJIN), which, themselves, have special units for supporting investigations relating to public administration offenses.

The Anti-corruption Units are part of the organizational structure of the Office of the Public Prosecutor and hence are not administratively or budgetarily autonomous. In the judicial arena, however, each of the prosecutors in these units has autonomy in the investigative and decision-making process (Article 12 of the Constitution).

The Office of the Public Prosecutor is ultimately responsible for proceedings in relation to criminal activity; it may initiate these itself or may undertake action in response to formal complaints. The Office of the Public Prosecutor is required to send copies to the other oversight bodies when it uncovers possible violations of disciplinary or fiscal regulations. It also observes the Constitutional principle of collaboration between the different branches of government. All government entities are required to collaborate with Public Prosecutor investigations.

In accordance with the authority conferred by Decree 1421 of 1993 (the “Bogotá Statute”) and Resolution 24 of 1993, the District-based special oversight body is a governmental oversight and supervisory entity designed to enforce moral integrity in government, promote the measures needed to correct irregularities and deficiencies, encourage organizational development, do all possible to ensure timely application of sanctions, promote citizen participation, and assess compliance with commitments to the community. Within the Capital District, the special oversight body is an innovative institution and constitutes an anti-corruption unit at that level. It coordinates the mayor’s “Transparent Bogotá” policy, according to which entities at the district level commit themselves to a code of good practice in contracting, dealings with citizen complaints, social oversight, internal oversight and accountability.[8]

As explained in Chapter two, this department is responsible for enforcing the provisions of section 4 of Article III of the Inter-American Convention, which deals with statements of income, assets and liabilities.

b. Describe state the results that said oversight bodies have obtained in complying with the previous functions, attaching the pertinent statistical information, if available, for your country.

a. Does your country have a legal framework and mechanisms to encourage participation by civil society and non-governmental organizations in efforts to prevent corruption? If so, briefly describe them and list and attach a copy of the related provisions and documents.

With the 1991 Constitution, a new legal framework was established in which relations between the State and society were broadened, and in which participation is conceived as a right and a duty, giving citizens the opportunity to participate actively in exercising their rights, in decision-making, and in exercising oversight of State’s activity. However, the principle of participation has not been fully assimilated or exploited in the society, in many cases because of ignorance, apathy or fear. Thus, although there are standards and mechanisms for participation, the relationship is still fragile, and the level of social capital remains low.

There are results, but they are not included in centralized statistics. Various entities have tools that illustrate how opportunities can be created for interaction between citizens and governmental agencies, how citizen initiatives can be channeled, and how educational and organizational proposals originating in civil society can be facilitated. This chapter will deal with some of these phenomena. It should be noted that because of the experience and role that some organizations in civil society have had in utilizing mechanisms of citizen participation, 22 of them have been asked to collaborate in responding to this chapter. A summary of standards for participation is attached.[9]

“Article 2. Essential goals of the State include . . . facilitating the participation of all persons in the decisions that affect them and in the nation’s economic, political, administrative and cultural life.”

“Article 23. All persons have the right to submit respectful petitions to the authorities for reasons of general or particular interest, and to obtain prompt resolution. Legislators may engage in actions before private organizations in order to secure basic rights.”

“Article 103. Mechanisms by which the people participates and exercise their sovereignty include: voting, plebiscites, referenda, popular consultations, open public dialogue, legislative initiatives, and removal from office.

The state shall contribute to the organization, promotion and training of professional, civic, labor, community, youth, philanthropic or broad-interest non-governmental organizations, without prejudice to their autonomy, in order that they may provide mechanisms of democratic representation through various forms of participation, coordination, and oversight and supervision of public administration.”

“Article 270. The law shall structure the forms and systems of citizen participation that make it possible to monitor public administration and the results thereof at various administrative levels.”

In addition to the foregoing, the Constitution facilitates participation in various forms:

- Articles 49, 51, 52, 68, 69, 79, 247 – Social services in areas such as education, health, housing, recreation and sports, and a healthy environment. Law 100 of 1993 deals with the area of social security.

- Articles 311, 318, 323 – Regarding sub-national government administration.

- Law 136 of 1994 regarding municipal development, Laws 101 of 1993 and 160 of 1994 regarding rural and agricultural development, Decree 2132 of 1989 regarding cofinancing funds, Decree 1512 of 1998 regarding the National Rehabilitation Plan.

Articles 5 and 6. Any person may submit respectful petitions to the authorities, either orally or in writing, in any medium. These articles indicate the requirements for written petitions and the time periods allowed for response.

“Article 100. Regarding special citizen oversight bodies. Civil organizations may create special citizen oversight bodies or oversight boards at the national level or any sub-national level in order to monitor public administration, its performance or the provision of public services.”

Currently, the Constitutional Court is reviewing the feasibility of implementing a bill to regulate special citizen oversight bodies, without prejudice to citizens’ right at any time, as part of society, to monitor the management of governmental entities.[11]

Article 32. Democratization of public administration. All governmental entities and organizations are required to follow principles of participatory democracy and democratization in their management practices. This article provides examples of actions that government may take to fulfill this requirement.

Article 33. Public hearings.

Article 34. Monitoring of government administration by citizens. When citizens decide to create mechanisms for society to monitor government administration, particularly by means of special citizen oversight bodies, government is required to provide any support necessary for such monitoring.

Article 35. Exercise of special citizen oversight boards, access to information and creation of special oversight bodies. [12]

“Article 66. Regarding community participation. All contracts made by governmental entities shall be subject to citizen monitoring and supervision. Civic, community, professional, philanthropic or volunteer organizations may submit complaints to relevant authorities regarding acts, facts or failures to act on the part of public servants or private parties that may constitute crimes, violations or offenses in government contracting.”

“Article 53. Every government entity shall have an office for receiving, processing and resolving complaints and claims by citizens regarding the entity’s fulfillment of its mission.”.

Article 4. Defines collective rights as including, among others, rights related to the moral integrity of public administration, the use of public spaces, the use and protection of public assets, the conservation of the nation’s cultural patrimony, and consumers’ and users’ rights.

Article 40. Economic incentive in popular actions related to administrative morality.

“Article 1. Object. Any person may appeal to the judicial authority defined in this law to enforce standards applicable through the substantive weight of law or administrative acts.”

b. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

The new organizational structure of the Office of the Controller General includes the Office of Citizen Participation, whose mission is to actively involve the citizenry in monitoring fiscal management in government. The aim is to promote the fulfillment of the institutional mission of the Office of the Controller General.[13]

· OFFICE OF THE PRESIDENT OF THE REPUBLIC – PRESIDENTIAL PROGRAM TO COMBAT CORRUPTION

In accordance with Presidential Directive 09 of 1999, cited above, entities within the national government make use of dynamics and tools for citizen participation.

COLOMBIEMOS is a project of the Presidential Program to Combat Corruption. It is designed to create a network of citizens committed to protecting all that is public, i.e., that which belongs to everyone. This is a communication project designed to give all Colombians, without exception, the opportunity to become acquainted with and protect all that is public, through various measures and tools.

- A web page where citizens can join the project, communicate with Colombiemos, and obtain information about the tools available to monitor and protect the use of public assets and resources.

- The Colombiemos Bulletin, through which citizens who have joined receive information on matters related to the anti-corruption efforts.

- Citizens groups carrying out specific activities, i.e., groups created around a specific investment project or public process over which they have decided to exercise oversight as members of society.

- Appeals to create groups through which citizens can exercise social control in areas of interest to them.

- Events of a mass nature concerned with protecting all that is public, e.g., public hearings where government entities provide accounting.

Citizens informed: Three bulletins produced, web page online with continuous updating, and more than 70 workshops held.

Citizens involved in protecting the public sphere: 16 groups through which citizens can exercise social control over public management and/or investment, with a plan of action and support provided for two public hearings held for rendering of accounts.

Plan Colombia is the national government’s strategy to achieve peace, general prosperity and a stronger State. It includes four independent but complementary strategies: the effort to combat drug trafficking, institutional strengthening and social development, economic and social revitalization, and a negotiated political solution to the conflict.

Plan Colombia has a special oversight body made up of five persons representing the private sector, appointed by the President of the Republic.

With support from Colombiemos, 70 groups for social control have been created in connection with the productive project “Campo en Acción.” Web page: www.plancolombia.gov.co.

Empresa Colombia is a social management strategy that seeks the participation of the community in defining investment priorities, providing effective tools that citizens can use to exercise controls over investment and guarantee that resources are delivered in their entirety and in a timely fashion to the various sub-national entities. The strategy was designed by the Office of the President of the Republic, and it includes participation by all central government entities that provide support for regional investment projects. Empresa Colombia is a strategy for improving efficiency and making public investment in Colombia completely transparent. In this respect, since what is at issue is the investment of funds that belong to the nation, it is important to note the connection between the Office of the Controller General and the departmental governments.

The process of prioritizing and signing Citizens’ Pacts in 29 departments and in the Zona de Distension has been completed.

Approximately 150 events have been held, with approximately 14,000 delegates from communities in different municipalities attending, with all of these events exemplifying the process of the citizenry exercising social controls over government.

Approximately 800 projects have been registered with the Fondo Nacional de Regalías for a total value of approximately $200 billion, in addition to roughly one thousand new investment initiatives.

In addition, the Office of the Controller General’s Office of Citizen Participation has been actively involving itself in the process of formulating a joint strategy with Empresa Colombia. The following preparatory activities have been carried out as part of this process:

Assessment workshop for the Empresa Colombia strategy. All the regional units of the solidarity network from around the country participated.

Workshop to form special citizen oversight committees. Held in Bogotá, with participation from 24 departmental governments.

Coordinated design of the working strategy to be implemented by Empresa Colombia and the Office of the Controller General of the Republic.

c. If no such mechanisms exist, briefly indicate how your country has considered the applicability of measures within your own institutional systems to create, maintain and strengthen the mechanisms to encourage participation by civil society and non-governmental organizations in efforts to prevent corruption, in accordance with Article III (11) of the Convention.

a. Does your country have mechanisms that regulate and facilitate access of civil society and non-governmental organizations to information under the control of public institutions? If so, briefly describe them, indicating, for example, before which entity or agency said mechanisms may be presented and under what criteria the petitions are evaluated. List and attach a copy of the related provisions and documents.

THE CONSTITUTION

“Article 20. All persons are guaranteed the freedom of expression and the freedom to make known their thinking and opinions, to inform and to receive accurate and impartial information, and to establish mass communications media.

Such media are free and have social responsibility. The right to make corrections under equitable conditions is guaranteed. There shall be no censorship.”

“Article 23. All persons have the right to present respectful petitions to the authorities for reasons of general or particular interest, and to obtain prompt resolution. Legislators may engage in actions before private organizations in order to secure basic rights.”

“Article 73. Journalistic activity shall be guaranteed freedom and professional independence.”

“Article 74. All persons have the right to access public documents, save for cases excepted by law. Professional secrets are inviolable.”

Articles 17 and 19. Regarding the right to information, to consult documents, and exceptions.

PUBLIC ADMINISTRATION STATUTE – Law 489 of 1998

Article 35, section b. Access to information for special oversight bodies. Public officials who create obstacles to access by special oversight bodies to information ipso facto engage in improper conduct.

Articles 36 and 37. These articles create the General System of Administrative Information, which shall provide support for governmental entities in carrying out their missions, objectives and functions, shall give an account of institutional performance and facilitate internal evaluation of public administration as well as evaluation by the general public.

PUBLIC DISSEMINATION OF OFFICIAL ACTS AND DOCUMENTS – Law 57 of 1985

Article 1. “The nation, departments and municipalities shall include in their respective official gazettes or bulletins all governmental and administrative acts whose dissemination is essential if the public is to be aware and informed of the handling of public affairs and in order to be able to exercise effective oversight of the conduct of public officials. Any other acts that, pursuant to law, are required to be made public in order to have legal effect, shall also be published in said gazettes or bulletins.”

GENERAL LAW ON PUBLIC RECORDS– Law 594 of 2000

“Article 4, section f. General principles. (...) f. The State has the obligation to manage public records, and it is a right of citizens to have access to same, save for exceptions specified by law.”

GOVERNMENT CONTRACTING STATUTE– Law 80 of 1993

“Regarding information on contracting, fines and sanctions” and regarding information bulletins regarding bidding.”

ANTI-CORRUPTION STATUTE– Law 190 of 1995

“Article 59. As an appendix to the Diario Oficial, this article creates the Diario Unico de Contratación Pública, which shall be produced and distributed by the National Press. It shall contain information on the contracts made by national government entities. It shall report the contracting parties, the object of the contracts, the contract value and unit values, where appropriate, time frames, and additions or modifications to all contracts. It shall be edited in such a way as to make it possible to establish parameters for comparison of costs, time frames, and type, so as to identify significant differences in contracts and evaluate the efficiency of public administration.”

b. Describe state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

The Connectivity Agenda seeks to make information technology available at the mass level to increase competitiveness in the productive sector, modernize government institutions and bring information to the society at large. For these purposes, the government has strategies designed for the community level, the productive sector and the State. In the latter case, the agenda seeks to provide connectivity to improve management within government agencies, support citizen services, and contribute to building an efficient and transparent State. The basic strategic tool is titled Government Online and includes programs to create a government intranet system that will include a portal to government information and services. Web page: www.agenda.gov.co.

GOVERNMENT ONLINE – Presidential Directive 02 of August 28, 2000

The objective of the Directive is to specify the obligations of executive branch entities in the central government in an effort achieve efficiency and transparency, improve services provided by the State and facilitate public access to information produced by the State with the help of information technology. The directive is a result of the above-mentioned Connectivity Agenda, and aims to make the State an exemplary user of information technologies, facilitating the online management of activities for which its sub-entities are responsible. The portal of the Colombian State is utilized as part of the Government Online effort.

As a result of the implementation of Phase 1 (Information Online) of Presidential Directive 02 of 2000, the 201 entities that constitute the central government of the Colombian State now have effective and useful online presences. The Government Online strategy of the Connectivity Agenda created a single portal to facilitate public access to all government entities online. This integrated portal was accessed by 360,576 users in the month of April 2002 alone. The pages of the various government agencies include information on the respective institution, the laws and regulations governing it, its budget, its plans and programs, the services is offers for citizens, and its performance reports, as well as providing a place for online complaints and claims by citizens.

As a result of the implementation of Phase 2 (Online Procedures and Services) of Presidential Directive 02 of 2000, citizens have online access to 726 procedures, which they can partially or completely complete online. They can also use any of 478 online services that have been implemented by governmental entities as part of their individual web pages.

As part of the implementation of Phase 3 (Online Contracting) of Presidential Directive 02 of 2000, Government Online, along with the National Planning Department, designed policies and standards for implementing online processes for government contracting. The Connectivity Agenda also organized and held a series of events to ensure the successful implementation of Phase 3. A total of approximately 1,100 government workers attended.

a. Does your country have mechanisms for those who perform public functions to consult civil society and non-governmental organizations on matters within their sphere of competence, which can be used for the purpose of preventing, detecting, punishing and eradicating public corruption? If so, briefly describe them and list and attach a copy of the related provisions and documents.

“Article 3. REFERENDUM . This is the process whereby the people are called on to approve or reject a proposed legal rule or to rescind or vote not to rescind a legal rule currently in force.”

“Article 7. PLEBISCITE. This is the process whereby the people make known their wishes in favor of or against a decision proposed by the President of the Republic.”

“Article 8. POPULAR CONSULTATION.. This is an institution whereby a general question regarding an important matter of national, departmental, municipal, district or local nature is submitted to the people by the President of the Republic, the governor or the mayor, as the case may be, for the people to formally express their wishes on an issue. The decision of the people is binding.”

“Article 9. OPEN DIALOGUE. This is a public meeting of district or municipal council members, or of local administrative councils, in which inhabitants of a particular area participate directly in discussing matters of interest to the community.”

b. Briefly state the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

In accordance with the provisions of Article 108 of Law 134 of 1994, the National Registry of Vital Records is responsible for keeping a record of the use of the institutions and mechanisms for citizen participation regulated by that law.[15]

a. Does your country have mechanisms to facilitate, promote and obtain the active participation of civil society and non-governmental organizations in the process of public policy making and decision making, in order to meet the purposes of preventing, detecting, punishing and eradicating acts of public corruption? If so, briefly describe them and list and attach the related provisions and documents.

Yes, the Constitution and legal rules, as well as the general provisions mentioned above in points 1, 3 and 5 of this chapter, set forth various levels of citizen participation in government activities such as planning, management, execution, and oversight of the public sector, through mechanisms such as consultation, initiatives, monitoring and decision making, some of which we shall discuss below.

“Article 340. There will be a National Planning Council composed of representatives of sub-national governments and of the economic, social, ecological, community and cultural sectors. As a consultative body, the Council will serve as a forum for discussing the National Development Plan...

“Article 318. In order to improve the provision of services and ensure public participation in dealing with local governmental matters, the councils may divide their municipalities into communes, in the case of urban areas, and into corregimientos (indigenous land-owning communities), in the case of rural areas.”

“Article 369. Public utilities. The law shall specify the duties and rights of users, specify the regime protecting their rights and provide for their participation in the management and monitoring of state-owned utilities.”

“Article 273. Government contracting. At the request of any bidder, the Controller General of the Republic and other fiscal control officials shall order that the awarding of bids take place in a public hearing.”

“Article 2. Popular legislative and regulatory initiative before public bodies consists of the political right that a group of citizens has to submit bills to the national Congress, to submit proposed regulations to departmental assemblies, resolutions to municipal or district councils, or resolutions to local administrative councils.”

“Article 6. Removal from office. Removal from office is a political right that citizens may invoke to end the term of office of a governor or mayor.”

b. Briefly describe the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

a. Does your country have mechanisms to facilitate, promote and obtain the active participation of civil society and non-governmental organizations in the monitoring of public administration, in order to meet the purposes of preventing, detecting, punishing and eradicating acts of public corruption? If so, briefly describe them, and list and attach a copy of the related provisions and documents.

Yes, through law 489 of 1998, cited above, the national government has created the opportunity for civil society to organize to exercise social control over public administration. This law is considered to provide a foundation upon which the State and society can come together. Despite commonly held views of its scope and effectiveness, it has proven to be the most significant form of participation, since it requires that both citizens and public officials be more knowledgeable and accountable in terms of building the public sector. Hence, we refer the reader to the responses given in this chapter in general, especially those dealing with special citizen oversight bodies, social controls and accountability. The above-mentioned law gives the Administrative Department of Public Administration responsibility for formulating and advancing the National Plan for the Training of Special Oversight Bodies in collaboration with the College of Public Administration, which is oriented to training citizens in exercising social control.[16]

The new law regarding special oversight bodies, which governs matters on this topic, is a new version of Law 563 of 2000, which was declared unworkable because of problems in its format. The object of the new law includes monitoring: proper use of public resources; allocation of resources under law and as a part of duly approved projects; fulfillment of tasks; goals and effectiveness of covering beneficiaries; quality, timeliness and effectiveness of public investment; government contracting; and the diligence of public officials in supporting the objectives of the State in different areas of management, through the exercise of preventive and ex post monitoring and through timely written recommendations to the entities executing programs, projects or contracts, as well as to monitoring entities.

The guiding principles governing special oversight bodies include the principle of responsibility whereby the participation of these bodies in government management is based on the collaborative efforts of private individuals and their organizations in promoting the fulfillment of State objectives.

b. Briefly describe the results that have been obtained in implementing the above standards and mechanisms, attaching the pertinent statistical information, if available, for your country.

As explained above, statistics are not available, but – pending the passage of the new law – we do have knowledge of special citizen oversight bodies or, more precisely, of social controls, that have played an important role in reporting problems and in oversight, as in the case of election of magistrates to high courts in the judicial system, in the constitutional reform of 1996, and in action to remove members of Congress from office. Indeed, between 1996 and 2001, 39% of congressional removals were initiated by the Network of Special Oversight Bodies (VER). Civil society has also been developing a series of tools for monitoring and control, such as:

Integrity Pacts: These pacts are a tool developed by Transparencia por Colombia, a national chapter of Transparency International, which directly monitors governmental entities with respect to specific contracts for important projects at the national or sub-national level involving significant sums of public funding. To date, 29 Integrity Pacts have been signed.

Code of Ethics for Businessspeople negotiating with the State: This tool was developed by Confecámaras and has been promoted by chambers of commerce. In two years, more than 1,000 businesspeople have signed it in ten Colombian cities, which is a prerequisite to their signing the Honesty Pact. Various meetings were held in 2001, the Code was brought to the attention of the public, and approximately 2,000 businesspeople have signed.

Honesty Pacts: This tool, developed by Confecámaras, involves voluntary agreements signed by all parties directly involved in government contracting, in order to increase the transparency, equity, honesty and sustainability of the selected contracting modality. Honesty Pacts apply to smaller contracts. In the current year, eight honesty pacts have been signed in Manizales, and two are soon to be signed in other cities.

Transparency Pacts: Developed by the Presidential Program to Combat Corruption, in collaboration with Confecámaras, these are designed to consolidate or strengthen the commitment to transparency and accountability on the part of candidates to elective office. During the past electoral campaign for governors and mayors, 38 transparency pacts were signed in various sub-national areas. They were promoted by social organizations, following the initiative taken by the Presidential Program to Combat Corruption in Government. To date, 46 pacts have been signed by governors and mayors.

Visible Candidates, Visible Congress: This is a project of the Political Science Department of the University of the Andes. It provides information on Congressional and Presidential candidates to the public in order to aid citizens in monitoring and evaluating their performance. Citizens thus have an enhanced base of information on which to base their electoral judgments. The project’s web page provides a full range of information relating to Congress and its members. During the campaign of January through March 10, 2002 the site received 47,212 hits, and during the presidential campaign, 2,268. To date, the project has published 11 bulletins, printing 5,000 copies of each, and 50% of current members of Congress have been included.

On July 30, 2002, before the end of the previous government’s term, the Office of the Vice President, Presidential Program to Combat Corruption in Government, held the first National Forum for Public Accountability as part of the effort to combat corruption. Executive, legislative and judicial branch entities, as well as oversight bodies, participated. The Forum was directed at Colombian civil society, communications media, elected officials and those assuming responsibility for governmental entities in the government that took office on August 7, 2002. Each participating governmental entity gave a public presentation on its activities and results, and on the impact of anti-corruption initiatives carried out by the lead agencies within given sectors, as well as the entities reporting to or associated with them. See attached CD-ROM containing proceedings of the Forum.[17]

1. Mutual Assistance

a. Briefly describe your country’s legal framework, if any, that establishes mechanisms for mutual assistance in processing requests from officials of other states parties which, pursuant to their domestic laws, have the power to investigate or prosecute acts of public corruption, in order to obtain proof and carry out other activities necessary to advance processes or actions involving the investigation or prosecution of acts of corruption. List and attach a copy of the provisions contained in such mechanisms.

The basis, or general framework, of international mutual assistance appears in the Vienna Convention on Diplomatic Relations, signed on April 18, 1961, and the Vienna Convention on Consular Relations, signed on April 24, 1963, which were approved by Colombia in Law 6 of 1972 and law 17 of 1971, respectively, both of which are still in force. To date, Colombia has signed two multilateral treaties dealing with corruption: the Inter-American Convention against Corruption, signed within the Organization of American States in Caracas on March 29, 1996 and approved by Colombia in Law 412 of 1997, ratified on January 19, 1999, and currently in force, and the Convention against Transnational Organized Crime, signed within the United Nations on December 12, 2000 in Palermo, Italy – now being advanced in the national Congress – which includes a chapter dealing with corruption. Currently, the United Nations Convention against Corruption is being negotiated at the United Nations in Vienna.

As a social law state founded on the principle of human dignity and the priority of the common good, Colombia faces a great challenge before the international community, the challenge of contributing its efforts to fight the scourge of corruption. International cooperation consists of implementing the principles enunciated in the Constitution and based on equity, equality and reciprocity.

In fulfillment of this commitment, and taking into account the globalization of international relations, Colombia has signed a number of treaties, both bilateral and multilateral, for the purpose of providing assistance and cooperation in the judicial field in order to prevent, monitor and combat the range of criminal activities that transcend national borders. One constant in these treaties has been that the responsible authorities have been the Office of the Public Prosecutor and the Ministry of Justice and Law. Domestic legislation applies in a subsidiary manner.

Chapter 8. Regarding International Relations (Articles 224, 225, 226 and 227).

With its broad scope, this code includes a number of provisions concerning relations with foreign authorities, requests for judicial assistance originating in Colombia, and requests for judicial assistance deriving from other countries. The code also contains provisions regarding assets that are the product of criminal conduct, which may be subject to confiscation and extinction of ownership through the use of protective measures.

These articles contain provisions regarding requests for judicial assistance originating in Colombia or deriving from other countries, relating to civil and disciplinary investigations.[18]

b. Has your government made or received requests relating to the mutual assistance referred to in the Convention? If so, indicate the number of requests your government has made, how many of these have not received responses, how many have been refused and for what reason, how many requests your government has received, how many of these it has not responded to, how many it has refused and for what reason, and indicate the time that your country has taken to respond to these requests, as well as the time taken by other countries to respond to yours, and indicate whether you consider the time taken reasonable.

There are no data on record at either the Office of the Public Prosecutor or the Ministry of Justice and Law.

c. If no such mechanisms exist, briefly indicate how your country will implement the obligation envisaged in Article XIV (1) of the Convention.

a. Does your country have mechanisms to permit the widest measure of mutual technical cooperation with other States Parties regarding the most effective ways and means of preventing, detecting, investigating and punishing acts of public corruption, including the exchange of experiences by way of agreements and meetings between competent bodies and institutions, and the sharing of knowledge on methods and procedures for citizen participation in the fight against corruption? If so, describe them briefly.

This law creates the Colombian Agency of International Cooperation, or ACCI, which began operations in 1997, initially as part of the National Planning Department. With Decree 1320 of 1999, it was placed under the Ministry of Foreign Relations. The Agency is the administratively and financially autonomous national governmental entity responsible for coordinating and promoting the non-reimbursable technical and financial international cooperation that Colombia receives and gives. To this end, it assists national and sub-national governmental entities in determining demand, and in negotiating, executing and evaluating programs and projects. The foregoing does not exclude the creation of mechanisms to develop international cooperation in the framework of international legal instruments.

DECREE 2105 OF 2001

It is also important to note that, pursuant to this Decree, the Ministry of Foreign Relations is responsible for making and guiding policy regarding international cooperation in its various forms. The specific entity within the Ministry responsible for carrying out these tasks is the Vice Ministry of Multilateral Affairs, which is also responsible for monitoring and evaluating implementation of foreign policy in this area and, when it deems appropriate, delegating this work to departments within the Ministry or at the Colombian Agency of International Cooperation, taking into account that the Agency is part of the Ministry.[19]

The current administration intends to carry out institutional and policy reforms in the area of international cooperation.

b. Has your government made requests to other States Parties or received requests from them for mutual technical cooperation under the Convention? If so, briefly describe the results.

Yes, we can cite some examples relating to matters covered in the Convention, but it should be borne in mind that, through different mechanisms, different entities have benefited from international technical cooperation in the fight against corruption. For example, Article 500 of the Code of Criminal Procedure states, “International cooperation. The Solicitor General of the Nation may engage in activities with his counterparts from other nations in sharing technology and experience, coordinating controlled delivery, coordinating undercover agents, coordinating judicial cooperation or training, or for any other activity carried out for similar ends.”

The United States Agency for International Development (USAID) has had programs in Colombia for almost 40 years. One of them deals with preventing corruption through citizen participation and strengthening of governmental controls.[20]

The Efficiency and Transparency Unit works within the Presidential Program to Combat Corruption as an activity based on the Bilateral Technical Cooperation Agreement. The principal objectives of the Unit, since its establishment as part of the Policy for the Improvement of Public Management, have been to contribute to improving government services, to generate savings and promote efficiency in public spending, and to increase transparency in offices of the central government. For more information, it is suggested that the reader consult the web page of the above-mentioned Presidential Program to Combat Corruption, as well as documents appearing in Annex 1. (Great Britain is not a Member State of the Inter-American Convention against Corruption, but it has contributed very significantly to developing instruments to combat corruption in Colombia similar to those established in the Convention.

Under the Basic Agreement on Technical and Scientific Cooperation, signed on July 16, 1991, a Memorandum of Understanding was signed on August 28, 1999 regarding standards and policies governing internal audits and enhancement of honesty and transparency in government. In this case the exchange was reciprocal. Experts from the two countries met in Bogotá and in Santiago. The exchange involved procurement systems, programs to improve public management, monitoring of performance and budget, internal audits and legislative measures to promote honesty.

In July 2002, the Director of the Presidential Program to Combat Corruption was invited by the Minister of Foreign Relations and the Chair of Paraguay’s Council to Promote the National System of Integrity to make a presentation on Colombia’s anti-corruption policy. This exchange has created a basis for systematic mutual cooperation. One of the basic themes of the meeting was special citizen oversight bodies.

c. If no such mechanisms exist, briefly indicate how your country is going to implement the obligation, in accordance Article XIV (2) of the Convention.

d. Has your country developed technical cooperation programs or projects on aspects that are referred to in the Convention, in conjunction with cooperation agencies or international organizations? If so, briefly describe them, including, for example, the subject matter of the program or project and the results obtained.

Many technical cooperation programs and projects dealing with issues covered in the Convention have been developed in Colombia with support from international organizations, including the United Nations, UNPD, the World Bank, the European Union and the Andean Development Corporation. Some examples follow:

United Nations – U.N.: In recognition of Colombia’s superior management capacity, the Government of Colombia and representatives of the United Nations Office for Drug Control and Crime Prevention / Center for International Crime Prevention, agreed in 2001 to create a pilot project aimed at identifying activities designed to build a National System of Integrity to Combat Corruption, for replication in the other countries of Latin America. Based on this, the proposal for strengthening local government institutions in the attempt to combat corruption was signed last July 9. [21]

World Bank: Through the Presidential Program to Combat Corruption, the office of the Vice President of the Republic, with support from the World Bank, has, as of June 2002, led a process of strengthening the National Anti-corruption Alliance, which includes national government institutions, oversight bodies, private organizations, academic organizations and NGOs. This joint effort has focused on strengthening the specialized network of institutions and government in order to define and guide action strategies aimed at combating corruption and countering elements that contribute to its presence in Colombia.

In order to understand the complex dynamic that is part of the corruption phenomenon, and seeking consensus in identifying, defining and formulating strategies to deal with the phenomenon in Colombia, the Office of the Vice President of the Republic – Presidential Program to Combat Corruption – the World Bank, and the various organizations that constitute the National Anti-corruption Alliance carried out a survey on Corruption, Governance and Institutional Performance. The World Bank supported the Colombian government in designing and carrying out the survey, the object of which was to conduct a systematic empirical analysis of corruption in Colombia in order to attain a more complete picture of the incidence and intensity of the problem, and to have a more solid basis on which to formulate policy and monitor and evaluate its impact. The survey drew on 8,308 respondents, including 3,493 users, 3,472 public officials and 1,343 businesspeople.[22]

In April 2000, there was a visit from the World Bank, with assistance from public officials and State contractors. A theoretical and practical analysis of Colombian regulations on government contracting was undertaken, culminating in a report that included the document CONPES 3186 (CONPES being the Consejo Nacional de Política Económica y Social, or National Council of Economic and Social Policy), which for the first time in the country’s history submitted to the Council for its consideration a new vision of how to articulate the different elements that come together in creating policy regarding efficiency and transparency in government contracting. [23]

European Union: The Administrative Department of Public Administration, with technical cooperation from the European Union, is advancing various proposals for imiplementing the National Training Plan for Social Control of Public Management. Within the plan is the degree program for training young students to be social control “multipliers,” so that through their social service activities training is imparted to the communities. At the moment, there are 159 instructors, and the strategy is for each of these to train at least 15 9th- and 10th-grade students, so that they, in turn, in carrying out mandatory social service, will exercise social control and/or training in their communities. When the program is completed, there will be approximately 2,385 “multipliers.”

a. His your country designated a central authority for the purpose of channeling the requests for mutual assistance as provided under the Convention?

Colombia has not designated a central authority for the specific purposes of the Inter-American Convention. For the moment, it is considered advisable to use the central authorities envisaged in the treaties that the country has signed in handling requests from other states and the Office of the Public Prosecutor, as well as requests that Colombia makes of other states, the Office of the Public Prosecutor or the Ministry of Justice and Law.

b. Has your country designated a central authority for the purpose of channeling the requests for mutual technical cooperation as provided under the Convention?

The Ministry of Foreign Relations – Colombian Agency of International Cooperation (ACCI)

c. If your country has designated a central authority or central authorities, please provide the necessary contact data, including the name of the agency/agencies and the responsible official(s), the position that he or she occupies, telephone and fax numbers, and e-mail address(es).

For international judicial assistance, the following may be contacted within the various entities:

- For criminal investigations: Office of the Public Prosecutor of the Nation – Office of International Affairs. Dr. Yolanda Sarmiento Amado, Director. Fax: 5702008, e-mail: anzapata@fiscalia,gov.co

- For criminal trials: Ministry of Justice and Law – Office of International Affairs. Dr. Germán Vallejo Almeida, Head of the office. Tel: 5606430; Fax: 5606523; e-mail: [email protected]

Ministry of Foreign Relations – Olga Bula, International Cooperation Coordinator. Tel: 5667103 / 5667105; Fax: 5625939; e-mail: [email protected]

Colombian Agency of International Cooperation – Rafael Uribe Iregui, Assistant Director of Technical Cooperation between developing countries, Acting Director. Tel: 2439669; Fax: 3419672; e-mail [email protected]

d. If no central authority or authorities have been designated, briefly indicate how your country will implement the obligation, in accordance with Article XIV (2) of the Convention.

a. Does the central authority have the necessary resources to enable it to properly make and receive requests for assistance and cooperation under the Convention? If so, please describe them briefly.

Ministry of Justice and Law: There is an account in the national budget titled “Current transfers,” sub-account “Foreign transfers.” Recipient of expenditure: international organizations. On the basis of this, the outlays necessary to meet cooperation obligations are made.

Office of the Public Prosecutor of the Nation: There is no specific allocation for judicial assistance, which is carried out with general funds from the national budget allocated for the functioning of the collaborating organizations. The Public Prosecutor’s Office always participates. The organizations collaborating in judicial assistance are the entities of the judicial police, i.e., the National Police, the DAS and the Technical Investigative Corps, or CTI.

Ministry of Foreign Relations: The Ministry of Foreign Relations has no funds for direct use in international technical cooperation, but the Colombian Agency of International Cooperation, which is part of the Ministry, has an International Cooperation and Assistance Fund, created by Law 318 of 1996 as a special account for the ACCI, the purpose of which is to provide support for non-reimbursable technical and financial cooperation, as well as international assistance that Colombia provides to other developing countries.

b. Have the central authority, since its designation, made or received requests for assistance and cooperation under the Convention? If so, indicate the results obtained, whether there were obstacles or difficulties in handling the requests, and how this problem could be solved.

III. INFORMATION ON THE OFFICIAL RESPONSIBLE FOR COMPLETION OF THIS QUESTIONNAIRE

(b) The official to be consulted regarding the responses to the questionnaire is: ELVIRA HELENA MONTAÑÉS ROMERO.

ANNEX IN ELECTRONIC FORM

STANDARDS[24]

17. General Law on Public Records – Law 594 of 2000

[1] Annexed are the Values Training Guide and the President of the Republic’s Code of Excellence, along with other documents published by the Presidential Program to Combat Corruption for the Transformation of Public Administration (8 documents and 1 code).

[2] Annexed are the Presidential Directive No. 09 of 1999 and Presidential Directive No. 10 of August 20, 2002.

[3] Annexed is an instructive guide to action for restitution.

[4] Annexed is the document prepared by the Office of the Attorney General of the Nation.

[5] Annexed is the document prepared by the Office of the Controller General of the Republic.

[6] Annexed is the document prepared by the Office of the Public Prosecutor of the Nation.

[7] Annexed is the document on the system of statement of assets and income prepared by the Administrative Department of Public Administration.

[8] Annexed are two documents prepared by the District-based Special Oversight Bodies – Office of the Greater Bogotá Metropolitan Area.

[9] Annexed is the “Manual for Participating,” in 5 volumes.

[10] Annexed is the document on Social Control – "Supercifras en Usuarios," of the Superintendency of Public Utilities.

[11] Annexed is the legislative bill.

[12] Annexed is the instructive guide, “Vía – Hacia el Fortalecimiento de la Veeduría Ciudadana.”

[13] Annexed is the document prepared by the Office of the Controller General of the Republic on citizen participation.

[14] Annexed is the document prepared by the Office of the Controller General of the Republic.

[15] Annexed is the document prepared by the National Registry of Vital Records.

[16] Annexed is the document prepared by the Administrative Department of Public Administration.

[17] Annexed is the diskette, “Informe de Rendición de Cuentas a la Ciudadanía sobre Lucha contra la Corrupción.”

[18] Annexed are the provisions referred to.

[19] Annexed are Law 318 of 1996 and Decrees 1320 of 1999 and 2105 of 2001.

[20] Annexed is the document prepared by USAID in Colombia, regarding the Anti-Corruption Program and its results.

[21] Annexed is the Memorandum of Understanding.

[22] Annexed is a copy of the document, “Corrupción, desempeño Institucional y Gobernabilidad en Colombia,” based on the results of the survey.

[23] Annexed is the document CONPES 3186, “Una política de Estado para la Eficiencia y la Transparencia en la Contratación Pública.”

[24] Annexed, in CD-ROM, are the standards referred to in the document.

Republic of Colombia

Article 405. Embezzlement for individual gain.

· THE CONSTITUTION

· GOVERNMENT CONTRACTING STATUTE – Law 80 of 1993

Article 8 states that public officials, as well as persons related in specified ways to them, may neither participate in bidding or compete for government contracts nor be party to such contracts.

ANTI-CORRUPTION STATUTE – Law 190 of 1995

“Article 34. Duties. These are duties of all public officials.

PENAL CODE - Law 599 of 2000

PENAL CODE - Law 599 of 2000

CONSTITUTION

Article 33. Public hearings.

Article 34. Monitoring of government administration by citizens. When citizens decide to create mechanisms for society to monitor government administration, particularly by means of special citizen oversight bodies, government is required to provide any support necessary for such monitoring.

Article 4. Defines collective rights as including, among others, rights related to the moral integrity of public administration, the use of public spaces, the use and protection of public assets, the conservation of the nation’s cultural patrimony, and consumers’ and users’ rights.

Article 40. Economic incentive in popular actions related to administrative morality.

THE CONSTITUTION

“Article 20. All persons are guaranteed the freedom of expression and the freedom to make known their thinking and opinions, to inform and to receive accurate and impartial information, and to establish mass communications media.

Articles 17 and 19. Regarding the right to information, to consult documents, and exceptions.

PUBLIC ADMINISTRATION STATUTE – Law 489 of 1998

PUBLIC DISSEMINATION OF OFFICIAL ACTS AND DOCUMENTS – Law 57 of 1985

GENERAL LAW ON PUBLIC RECORDS– Law 594 of 2000

“Article 4, section f. General principles. (...) f. The State has the obligation to manage public records, and it is a right of citizens to have access to same, save for exceptions specified by law.”

GOVERNMENT CONTRACTING STATUTE– Law 80 of 1993

ANTI-CORRUPTION STATUTE– Law 190 of 1995

GOVERNMENT ONLINE – Presidential Directive 02 of August 28, 2000

1. Mutual Assistance

DECREE 2105 OF 2001

ANNEX IN ELECTRONIC FORM

STANDARDS[24]

17. General Law on Public Records – Law 594 of 2000